Sunday, December 27, 2015

Helping criminals avoid justice is a criminal
offense in its own right. It is known as accessory after the fact. And when
that crime is a war crime, those who help the perpetrators avoid justice,
should be regarded as war criminals as well.
There are several reasons why this entire account, of all three
incidents is an accessory to the war crime committed by Islamic Jihad against
their people at Rafah, on August 3rd, 2014, in front of the
Preparatory 'A' Boys' School.

1.This is what it does.
By focusing their investigations and the resulting accusations only against
Israel and the IDF, they build a mindset were Israel is the only guilty party
to be considered. This mindset turns people away from the possibility of a Palestinian
responsibility.

2.According to their account
they were there on August 3rd, the day it happened, and they
could not see it?? They investigated, gathered information, build a picture
of the events that took place in that horrible day, and nothing? The details of
Islamic Jihad's crime are in the account and testimonies they collected, and
they could not see it? Kids are outside the safety of a public shelter after
the collapse of a cease fire and as far as HRW is concern it is as mundane as
buying ice-cream on Venice Beach, California? Even if there was no criminal
intention behind this, how could human rights activists of all people be
indifferent to it?

3.Nameless 45.
Nameless 45 is one of the perpetrators of this war crime. His age suggests he
had some kind of a command function. By treating him as a regular witness they
gave him the aura of legitimacy.

4.Where are the other two
witnesses? They promised six witnesses, but published the testimonies of
only 4 witnesses. The most noticeably missing testimonies are those of the UN
staff that run that school. Why omit them? As employees of the United Nations
their testimony is the most valuable there is. Even if HRW is biased against
Israel there should be no reason to do that. The relationships between Israel
and the UN agencies working in the Gaza Strip, especially UNRAW, are so bad and
bitter that the likelihood that the testimony of any of their employees will
carry even the slightest favorable view of Israel does not exist. The absence
of their testimonies, especially of the UN organizer present at the open front
gate at the time leading to the incident, omits only one thing. It omits their
side of the debate that took place at that open front gate. The debate between
him and the three volunteers. These volunteers did not share the nature of that
debate, nor where they asked about it. If they were a part of a criminal
activity that took place there, then they certainly had a good reason to hide
this. But what were the reasons HRW investigators had to hide this debate or
ignore it? Isn't it necessary background, like the family that asked nameless
45 for an extra gallon of water, or the heat and humidity of that day?

5.This is the best way to
cover up a crime. What is the best way for corrupt criminal investigators
to cover - up a crime? What is their best way to hide the identity of the
criminal actually responsible for the crime? The best way to do that is by not
asking a single question that can raise that suspicion.

Look at what they did, and look at what they
did not do. They were able to ask a common sense question criticizing the
Israeli side but were unable to ask common sense question that criticizes the
Palestinian side. On one hand they were puzzled by the IDF's decision to take
out that motorcycle at that specific time and place. On the other hand, they
were undisturbed by the presence of kids outside the safety of their shelter
during wartime. One sided questioning does not make any sense, unless some kind
of bias is involved. But it is more than just bias, because each of these
questions leads to a different place.

Asking the IDF why it chose that time and
place to fire at that motorcycle is a legitimate question. One that has an
answer, there was no choice. Fast moving objects are simply difficult to hit.
There is no reason to believe the drone did not try to hit it before; after all
the motorcycle was running away from it. But only when it slowed down, the
missile was able to catch it. There was no option to take out the motorcycle
after it slowed down because this could have been a part of getaway maneuver.
The presence of a getaway vehicle over there shows that indeed it was.

On the other hand the question not been asked
of the Palestinian side leads to more questions. Why the gate was open after
the collapse of the cease fire, and the sighting of the drone? What the
ice-cream and sweats vendors were doing out there, tempting the kids to step
into a likely danger zone, especially when they couldn't make a profit? The
answer to these questions requires an investigation that digs out more details
from this account. These details portray the most probable explanation
regarding that horrific day. According to this explanation, members of an armed
Palestinian group, most likely Islamic Jihad, operated inside that school.
Acting as volunteers they kept the gate open with the ice-cream vendors outside
in order to tempt children to leave the safety of that shelter. Their plan was
to use some of those kids in the escape maneuver of their friends on the escaping
motorcycle. They wanted the drone to
site the children in order to have it cancel the pursuit. Whether the drone
operators were able to spot them in time or not, is needed to be investigated.
But one thing is without any question. If it had not been for the Islamic Jihad
cell working inside that UN run school all those kids (and adults), would have
been alive and well today. In HRW account there is not a single reference to
that possibility. Every word, every phrase, every sentence, and every question
leads away from that possibility. A
possibility that once dug out of this account becomes the best explanation to
this murderous incident, if not the only one.
HRW treatment of the horrific events of August 3rd 2014 in
Rafah is simply a cover-up. It functions as a cover-up, it is constructed as a
cover-up, and it produced a cover-up. Therefor it is extremely likely, if not
certain, that it was intended to be a cover-up. A cover-up that helps war
criminals avoids justice by removing any suspicion from them.

6.What's the rush? On August 11th Sarah Leah Whitson,
the executive director of Human Rights Watch, North Africa and Middle East
Division, wrote a public letter to US secretary of state John Kerry. The letter
demanded from the United – States to place severe punishments on Israel. This
was before their investigation was complete. As the account reviewed here says,
they visited the Beit Hanoun School on August 12, 13, and 29. And the Jablya
school at August 13. The only investigation they did complete was the one in
Rafah, on August 3. This raises the suspicion that Israel's guilt was decided
in advance. Thus shedding a negative
light on all previous investigations. By the nature of their work human rights
activists are in-charge on one of the most ethically demanding subject of
modern lives. Here however they had violated the most basic of ethical codes by
pre-determining guilt before an investigation is completed. Why would,
intelligent persons do that? This could
be a simple case of over confidence, which again sheds negative light on all
previous investigations. But working
under the shadow of criminal complicity is a more powerful motivation. The
sooner they can point the finger at Israel, the sooner they can point the
finger away from themselves.

7.HRW's poor criticism of
Islamic Jihad. Historically HRW had criticized Israel, a lot,and
offered some criticism of the Palestinian Authority and Hamas. But there is
very little criticism in their archives of the Islamic Jihad. This is strange
and puzzling since it is the third largest Palestinian military organization,
and second largest official organization in the Gaza Strip. With an estimate of
8,000 fighters it is far smaller than Hamas, but significantly bigger than the
DFLP (Democratic Front for the Liberation of Palestine), and the PLFP (Popular
Front for the Liberation of Palestine). Yet, it had been the subject of the
same amount of criticism as these two small organizations, little to nothing
between 2002 and the end of Operation Protective Edge.

8.A letter of
self-incrimination. The content of Sarah Leah Whitson's letter can serve as
a verification of these charges. In this letter she begins by accusing both
sides of human rights violations. What is incriminating is the kind of actions
she wants the United States and the world to take. On one hand she calls on the
United States to limit the military technologies given to Israel. Technologies
Israel is using to successfully defend its citizens. On the other hand she
calls for the removal of all barriers over the transportation of goods and
commerce into the Gaza Strip. An act that will allow Hamas and Islamic Jihad to
get better military technologies, allowing them to violate more human rights.
If both sides are violators of human rights, shouldn't there be restrictions on
both of them? If her recommendation were to be implemented it will be more
difficult for Israel to protect its civilians, and easier for Hamas and Islamic
Jihad to kill them. She is literally offering aid to the Gaza based armed
Palestinian organizations in violating the human rights of Israelis. If she can
do that, what is keeping her from helping them violate the human rights of
Palestinians?

9.The actual series of
events vs. the actual series of investigations. Is this entire account a
case of gross incompetence or criminalcomplicity on behalf of Human
Rights Watch? So far this review has argued that it is a cover up. A cover up
that helps members of Islamic Jihad evade war crimes charges regarding a war
crime they committed against their own people. Islamic Jihad's guilt cannot be
disputed. However, HRW culpability could be simply a case of gross
incompetence. Such cases, of mind
boggling illogicaland stupendously amateurish decision making processes,
are known to have happened throughout history. They happened to governments and
militaries, banks and corporations, associations of various kinds, and
religious institutions. Just as it happened to them it could happen to any
human rights organization. No type of organization is immune. If this is the
case here, then they are so incompetent that they are acting as if they are
guilty of covering up someone else's war crime. It is certainly a possibility,
but a weak one. The first thing that points to a cover up rather than
incompetence is the actual series of investigations. The account describes each
of the tragic events in their order of occurrence. First is what happened in the coeducational
elementary school in Beit – Hanoun, on July 24. This is followed by the Jablaya
girls` school tragedy from July 30. And concludes with the attack on the
motorcycle, outside the Preparatory 'A' Boys' School in Rafah on August 3. This
lineup supports a scenario of ever growing incompetence. In their account of
the tragedy at the UN run school in Beit Hanoun, they showed limited understanding
of mortars fire behavior in an urban area, with no necessary supporting
technical information. In the Jablaya incident they showed poor understanding
of international law. This is a far worse case of ignorance in the material
been used, since international law supposed to be their area of expertise. And in Rafah they could not distinguish
between war criminals and witnesses, unable to see what is in front of their
eyes. But this is not the order of their investigations. First to be investigated
was the Rafah motorcycle attack, on the day it happened, followed by Beit
Hanoun, investigated on August, 12, 13, and 29, and Jablaya on August 13. The
biggest demonstration of incompetence is the first investigation they made.
This raises a great suspicion since the motive to a crime always comes before
the crime. According to the cover up accusation, the later bad investigations
are a part of the cover up, aimed to consolidate an anti – Israel mindset.
Therefore it will be logical that the crime been covered up, will be the first
investigation.

10.Growths of the
poisoning motive. With the Rafah investigation been the actual first
investigation; it's not only stands at the beginning of this process like a
motive would, it acts like one. It corrupts the two following investigations in
a way where virtually every fault that exists in this investigation is found in
either or both of the other two investigations:
A.) All three investigations are incomplete. In the Rafah account
they claimed the operators of the Israeli Spike missile could see the children
that were heart by the explosion because the Spike missile has an optical
guidance system. But failed to show that there was no interference to its field
of view from the surrounding urban environment. They also did not explain how
come one of the occupants of the targeted motorcycle survived the attack while
12 people, including 8 children, were killed farther away from it. And of
course they did not investigated why contrary to common sense the front gate of
that shelter was kept open. In the Beit Hanoun account they did not provide any
technical information to support their claim that the firing of the mortar
shells showed precision. They did not eliminate all the possibilities that
point to a Palestinian culpability. Most notably ignoring the possibility of
bad maintenance practices. In the Jabalya account they relied mostly on someone
else's investigation, the UN. Both investigations accused Israel and the IDF of
irresponsible use of force but failed to demonstrate it. Instead the detailed
they do provide show that the IDF did went to a great length to save
Palestinian lives. And was successful in doing so. The 20 deaths that did
occur, tragic though they are, are less than 1% of the 3,200 people sheltering
there at the time. Since anything below 1% is most definitely the lowest
possible minimum, international law had been implemented here to the letter.
International law requires armed forces to minimize the death and harm
inflicted on civilians by their weapons. On the other hand, both investigation
teams, those of the UN and HRW, did not look for Palestinian mortar positions,
even though this was Israel's main argument. That the IDF had fired at mortar
position less than 180 meters from this UN run school. But most importantly neither offered any
analysis of the IDF's actions during that attack. Analysis needed to establish
the accusation that Israel behaved irresponsibly that day and not as someone
attacking mortar positions adjoining the UN run school. When an analysis is
done the findings are the exact opposite. Because the smoke and laminations
shells Israel is reported to have used are exactly what an attack like this
requires when done responsibly. B.) Unprofessional investigation practices.
In the Rafah account they investigated the Spike missile and its guidance
system, but not the warhead and not the trajectory. Both of which are relevant
technical information, relevant to the accusations been made. This had repeated
itself in the Bet Hanoun were they failed to provide technical information
necessary to support their precision argument.
C.) The specter of bias. This review suggests that HRW is
covering up a Palestinian war crime against their people. At bare minimum this
suggests an anti-Israel bias on behalf of HRW. We first came in contact with
this suspicion when we read Sarah Leah Whitson letter to the US secretary of
state. There she predetermined Israel's guilt before the investigations were
complete. With every corky investigation always pointing the finger at Israel,
the specter of that bias follows their entire account. But it is especially
noticeable in the Beit Hanoun account. In this investigation they did not do a
lot of the things required in order to substantiate their accusations. Yet, they
spent three days investigating there. What were they doing there when they were
not doing their job? D.) Abusing the
human rights of Israelis. This
entire account and the conduct it represents is an abuse of the ideals of human
rights but it also contain specific threats to the human rights of Israelis.
This threat first appears in Sarah Leah Whitson letter to the US secretary of
state. There she calls for restriction to be imposed on Israel, while removing
restrictions from Hamas. Needless to be repeated, should this be implemented it
will be more difficult for the Israeli defense forces to defend the lives of
Israelis, and easier for Hamas, Islamic Jihad, and other armed Palestinian
groups to harm, kill, and murder Israeli civilians. We also see such a threat
in the Jabalya account. There HRW introduces an interpretation of international
law that gives legal protection to Palestinian fighters. It is a legal
protection given to areas and places adjoining UN shelters. With that
protection they can launch every military action they want; against the Israeli
military, as well as against Israeli civilians, with impunity. E.)
Abusing the human rights of Palestinians. As bad as the abuse of the human
rights of Israelis is, the abuse of the human rights of Palestinians is far
worse. As said above, the interpretation of international law they presented in
the Jabalya account allows ordinary Palestinians to be used as human shields.
That is far worse than just putting them at risk. It is placing them in
immediate danger. Much like Islamic Jihad did in Rafah, the crime HRW is
accused of covering up. Even the Beit Hanoun investigation constitutes an abuse
of human rights. People had died there, needlessly so. And their death deserves
more than this botched job. Here we see the demonstration of a known universal
truth regarding human rights. That when we allow one party to violate the human
rights of one group, we open the door for the violations of the human rights of
members of other groups. The hard bitter lesson is that what is true about the
various brunches of the government and military is true just the same when it
comes to human rights organizations.

11.Establishing bias.
It is the bias that points away from incompetence and towards culpability more
than any other suspicious characteristic of this account. The first thing that
can be said about this bias is that it cannot be denied. Here, even
incompetence cannot make excuses. In her letter Sarah Leah Whitson recognizes
that in order to protect civilians, access to weapons and technologies should
be limited. But this recognition is an
extremely selective recognition. As said above, even though Sarah Leah Whitson
and HRW recognize that Hamas activities also harm civilians, they do not call
for any restrictions over Hamas' access to weapons and technologies. On the contrary, they want all existing
restrictions to be removed. An act that will give Hamas access to more weapons
and technologies that will harm more Israeli civilians. Are we to understand
that when it comes to Israel they are intelligence enough to understand the
impact of these restrictions, but when it comes to Hamas they are inept
enough not to understand the impact of removing similar restrictions? This
selectiveness goes deeper than that. It also ignores the fact that Israel is
using its weapons and technologies to defend its citizens. Importantly but
separately, this shortcoming is a part of a chronic problem that HRW has; the
one that ignores the existence of hard heart wrenching dilemmas in times of
war, where life vs life decisions have to be made. (See the background part, at
the beginning of this review). As for Sarah Leah Whitson's type of selectiveness,
this one is literally a characteristic of the entire account. In the Jabalya
account the HRW investigators fully acknowledge the dense urban nature of most
of the Gaza Strip. It is their main argument against Israel's using 155mm
artillery shells in the urban environment of the Gaza Strip. But when the same
reality of the war provides a defense to the Israeli side, this reality
evaporates into a condition of not been mentioned or investigated. We saw that
in the Beit Hanoun account, where the witnesses at the UN run school could not
have seen whoever fired the mortar rockets at them because of the urban nature
of the area, (unless unique and unusual conditions of visibility existed, none
of which are provided.) And we saw that
in the Rafah account. Here they argued
that the Israeli drone operators could see the children near the targeted
motorcycle, since the Israeli Spike missiles have an optical guidance system.
But they did not address the possibility that the presence of trees and
buildings near that school could have blocked that view. In the Jabalya account
they are intelligent enough to notice what is there for everyone to see. But in
accounts of Beit Hanoun and Rafah, where the same features provide a defense
for Israel, they are too inept to see the very streets they walked through,
when headed to investigate those UN run schools. This is an absurd that repeats
itself with the technical data, (information regarding the weapons and
munitions used, and their capabilities). When we examine the role of this
information in these accounts we see the same contradiction. We are given a
detailed description of capabilities, impact, and risks of the 155mm shells
involved in the Jabalya tragedy. (This is very useful in order to understand
what had happened. But it does not contradict the Israeli version; since the
main debate there is over the interpretation of international law). On the
other hand we have a complete lack of such information regarding the mortars
used in the Beit Hanoun tragedy. In this case they claimed the rockets showed
precision without giving the information from which they reached that
conclusion. They also did not explain how they could make such a deduction
based on just four rockets, and without identifying the intended target. With
mortars the level of precision is determined based on the distances of the
shells' hit points from the intended target.
The greater the number of hits that are closer to the intended targets
the more precise the mortar is. But a large number of hits are needed in order
to make that determination. Not doing that and not being able to identify the
type of rockets, 120mm or 81mm, suggests a lack of professionality. Yet they
are professional enough to identify the 155mm artillery shells of Jabalya and
the Spike missile of Rafah. Again, whenever a piece of information may leads
to an exoneration of Israel, incompetence reigns supreme. Selective
incompetence is a proof of bias, and bias is a calculated act. But even bias
can be blind to what is in front of it, and all around it. It is the very
nature of the most extreme forms of bias.

12. The final incriminating bias. The selectiveness demonstrated by HRW does not end
here. When we look deeper into their treatment of technical information we find
a greater absurd. They offer us the technical details regarding the Spike
missile, and its guidance system, but not its warhead, and not its trajectory.
The selectivity is practiced within a single investigation of the only weapon
been studied. This leads to the forth area
of selectivity, the area of the 'could have beens'. We came across one
case of a 'could have', earlier in this review. In the Beit Hanoun
account HRW argued that the presence of Israeli tanks in the vicinity of the UN
run school suggests that this is a place from which mortar rocket could have
been fired. And that is enough for them to make it an incriminating
argument against Israel. The problem is that there are more cases of 'could
have' in this account, where a missing piece of information could
support the Israeli side. And at the same time it couldn't, because the
reason could is the poorest argument there is, is because for every 'could'
there is a 'couldn't'. For example, there is no reason to state, with any
degree of confidence, that information regarding the Spike's warhead would
exonerate Israel. Perhaps there is a way a warhead can explode in a way that
spares one person that is nearby while killing many others that are farther
away. It is up to the experts to answer that. The same goes for the information
regarding the Spike's optical guidance system. It is possible its field of view
was blocked, but there is no way of knowing that for certain without examining
its trajectory and the field of view along that path. Based on the currently
available information, it is equally possible its field of view wasn't blocked.
We do not know that it was; we only know that it could have. Any could
have is a T junction. In the Beit Hanoun account HRW claimed Israeli mortar
shells were responsible. All their arguments were flawed, and the investigation
incomplete. This leaves the actual identity of those who did fire the mortar
round, undetermined. It could have been an Israeli source. It could have been a
Palestinian one. In Beit Hanoun HRW avoids other field of inquiry that could or
couldn't exonerate Israel. The missing technical information could exonerate
and show that no precision firing was involved. But there is always a chance no
matter how slim that it could do the opposite. The same goes for Palestinian
maintenance practices. In the Beit Hanoun account HRW argued that there is no
way four Palestinian rockets could veer of target, within the same round. That
is another faulty argument. If maintenance conditions are poor this will
happen. Since HRW did not investigate this matter, we only that it could
exonerate, not that it would. What we have here is a very strange selectivity.
One that is completely unnecessary if the intention is just bias. On one hand
we have the "could have been" argument that they do use. This
is the presence of Israeli tanks in the vicinity of the UN run school in Beit
Hanoun. Which HRW declare could have been the source of the mortars that
were fired at that school. This could
have been possibility is enough for them to make an argument in support of war
crimes allegations against Israel. On the other hand, there is a list of 'coulds'
that HRW has completely avoided. Most of them mentioned above. They are
integral parts of any investigation of this nature and are fundamental to
understanding what has happened. Yet, they are not investigated, not addressed,
and are not even mentioned. These raises two questions: first, why ignore these
'coulds'? Since all they suggest is that Israel could be innocent, they
also suggest Israel could be guilty. All
a biased HRW author has to do is to phrase the matter in a way that fits
his/hers convictions, just like they did with the tanks. Second question, how
did they know to avoid these 'coulds' in the first place? There is only
one answer to both of these questions. They knew in advance what really had
happened. In Beit Hanoun, as well as in Rafah. They knew the Palestinians were
responsible for both of these tragedies, and avoided any line of inquiry that
led into that conclusion. This is why they avoided all these 'could
have beens', and this is how they knew to avoid them in the first
place. In Beit Hanoun, the UN run school was hit by Palestinian mortar shells.
These shells either fell short of their intended target due to poor
maintenance. Or due to mistaken identity, a case of Palestinian friendly fire
situation. In Rafah however the picture is clearer. An Islamic Jihad faction,
working as volunteers inside the UN run school, lured children outside using
ice cream vendors. They willingly and knowingly sacrificed these kids in a
failed attempt to rescue three of their comrades that were on that motorcycle.
In sacrificing those kids, and causing their deaths, they committed a war crime
against their own people. And HRW knowingly covers that up in the abysmal
report reviewed here. A cover up that helps the main perpetrators of this war
crime escape justice, thus turning HRW personal into accessories to this war
crime.

As Elise Keppler, the acting director of HRW's justice program, had said, "For World's worst crimes, Justice really matters." And for justice to matter it also must have credibility, and implemented on all those who violate human rights, even if they are human rights activists themselves.

Rafah,
August 3rd, 10:45 am; when common sense is another victim of a war
crime

There
is no major dispute between the IDF and HRW as to what has happened outside
the Preparatory 'A' Boys' School in Rafah, on August 3rd, at 10:45
am. A motorcycle chased by an Israeli drone was hit by a missile, probably a
Spike missile. This happened across the street from the open front gate
of that school, where children and adults were buying ice cream and sweets from
food vendors. As a result 12 were killed, among them 8 children, and around 30
were wounded. According to Israel there were three members of Islamic Jihad on
that motorbike. HRW does not dispute that, instead they argue that it was an
unlawful attack because it was a disproportionate willful attack. Here, again, a serious actuation is made,
without supporting evidence, based on another incomplete investigation. But
even before that they needlessly undermine their own credibility. Out of the
3,000 or so people sheltering in that school, these dead and wounded make less
of a percentage than the dead and wounded of the Jabalya tragedy. But this is
completely irrelevant to this case, since this is a totally different
situation. As Mark Regev, the Israeli foreign ministry spokesperson pointed out
at the time, it was not an attack on the school, rather on a motorcycle
operating in the vicinity of that school. And the testimonies gathered by HRW confirm
that. The very testimonies that captured the horror of this situation, also verify
the Israeli government line. Moammar Shaqlaih is a 32 years old volunteer who
helped mediate a dispute between one of the directors of the school and another
volunteer at the front gate, he says: "I was 20 meters away
from the explosion when it happened. I didn't see it happen because my back
was to the street. I ran towards the explosion, and I was completely
shocked. Kids who had been buying ice cream were lying in thestreet,
their bodies were bleeding everywhere. It was horrific….We brought the
dead and the wounded insidethe school…" The second male
volunteer, described as a, 45 years old volunteer that choose to remain
anonymous, also describes the motorcycle and the attack as taking place in the
street, outside the school. "In the street there were
three people on a motorcycle. The motorcycle slowed down, exactly in front
of the gate of the school, I could see it. The minute the cycle slowed
down, the missile hit." He too had to step outside to see what
happened. The testimony of Saber al Hams, the ice-cream vendor who left early
is taking place entirely in the street. There he sold ice-cream for about an
hour. Along that street he walked away, and run back again once he heard the
explosion. And in the street he saw the horrific site of the dead bodies. He
was never inside that school. These testimonies confirm what Mark Regev had
said. This was not an attack on a UN run school. It was an attack on a
motorcycle that rode nearby. The idea that this is an attack on a school
is an outcome of false impression. This false impression was initially created
by the news media. By the time the news crews got there the dead and wounded
had already been moved into the school. Since around that time the ambulances
came to take them away, the news crews entering the school saw the casualties
been taken outside and into the ambulances. This created the impression that
the school itself was attacked, and that is what the world saw. But for some reason
HRW chose to sustain this false impression. First with the main headline that
suggests all three schools were attacked, then with the secondary headline, containing
just the school's name. Yes, the two places, the site of the attack and the
school were close, close enough to make those who were at the school at the
time witnesses, but not victims or survivors. The two separate places are not
one and the same. This false impression undermines the credibility of HRW
account regarding the events outside the UN run school in Rafah, but it also
puts Israel's defenders in a bind. Because percentage wise, these 42 dead and
wounded, are probably close to 100% of the people standing around the sweets
and ice cream vendors, if not all of them.
For the purpose of making serious s accusation against Israel, this
false impression is completely unnecessary. They could have made a stronger
case without it, if it wasn't for the other holes in this account. The faults in this one are far more serious
than everything reviewed so far.

Here,
HRW is announcing a guilty verdict against Israel that is based on several
failures of the common sense type, and one omission that is simply too big to
be overlooked. HRW's first argument introduces itself as a common sense
question, "why couldn't the drone takeout the motorcycle before or
after it slowed down in front of that school?" There are common
sense answers to this question. The first has to do with the laws of nature and
science. The drone could not have hit the motorcycle before it slowed down in
front of that school from the simple reason that fast moving objects are more
difficult to hit. The idea that the drone, could have taken out motorcycle,
"after," makes even less sense. Taking it after it resumed
speed, requires the drone to hover around and wait until the motorcycle riders
decide to resume the chase. Why would
they do that? This would also make the drone vulnerable to fire from the
ground. And what if slowing down was a part of getaway trick - some kind of an
escape maneuver? If the three men on that motorcycle posed a military threat, a
fact HRW reluctantly accepted, then the drone operator could not have afford to
let them get away. Elementary reason shows that there was no after option
either.

In
their second failure of the common sense type HRW's emphasized the fact the
drone's alleged missile, a Spike anti-tank missile, uses an optical guidance
system. This they say suggests the drone operator had a clear view of the food
vendors and the children gathering around them. And therefore could have seen
the civilians and aborted. No it doesn't. A clear view requires a clear field
of view with no obstacles. As HRW keeps emphasizing the Gaza Strip is an urban
environment. Videos that came from that street shortly after the attack, (some
of them from the above mentioned news crews), show a street that is wide to
some extant but with its share of buildings and tall trees. To argue
responsibly that the operators of the drone and its missile could see the
children around the food vendors, an accuser must identify the course taken by
the missile as it chased the motorcycle. And show that along that course its
guidance system had the alleged clear view. HRW did not even address this
necessity. Another key requirement they did not address was whether or not
aborting that launch was possible. If this was indeed a Spike missile then its
operator had only 30 seconds to choose a different target for it. The school
was clearly not an option. And neither were the surrounding buildings, where
people were living in. As this IDF video shows, a successful abortion of
missile strike requires identifying the civilians, and a large enough available
clearing. A grossly incomplete investigation is a good enough reason not to
file criminal charges of any type. You do not need to be a lawyer to know that.
But the faults of this account don't stop here.

HRW
next fallacy is the following description of the Spike missile, allegedly fired
from the drone. "Spike missiles can create casualty-producing fragments
up to 20 meters from impact, which was well within the distance of the school's
front gate." This statement is simply wrong. It is not the missile
that produces the wide distribution of the fragments, it's the warhead.
Without identifying the warhead this charge cannot be made. Identifying the
warhead is needed for another important reason. It is needed in order to
explain an inconstancy in the account. According to the nameless 45 years old
volunteer, one of three men on the motorcycle survived the attack. Now, how
could a man sitting next to an explosion that is able to kill people 10 or 20
meters away survive it? It is quite possible that the science of physics can
explain this, but such an explanation is not provided. Until this is resolved
an alternative explanation has the same level of credibility as HRW's
accusation. As agreed by both the IDF and HRW, the occupants of the motorcycle
were members of an armed group. As such there is high probability that they
carried bombs and explosives with them. In almost all cases of bombs used by
armed Palestinian forces, the bombs included large amounts of debris and
fragments added in order to maximize the harm to civilians. As the evidence and
testimonies gathered by HRW tell us most of the casualties in this horrific
tragedy were caused by fragments that went deep inside their bodies. (Read the
testimony of the volunteer Moammar Shaqliah). Therefore the alternative
explanation suggests that it was not the Spike missile or its warhead that
caused the large number of casualties outside the school's gate. Instead, it
was a secondary explosion from an explosive device carried by the occupants of
that motorcycle that caused this tragedy. The gap between the two explosions
may have been too short to be detected by the nearby crowd, but it was enough
to allow one of the riders of that motorcycle to survive the two explosions.
The large amount of fragments added to all Palestinian made bombs is what
brought about the horrific deaths and injuries of 42 victims of this explosion.
Only a further investigation can determine if this explanation is the correct
one. Until then it has the same merit as the explanation offered by HRW.

HRW
had challenged the taking out of a legitimate military target with arguments that
supposed to be those of common sense. This makes their glaring omission of
another common sense question, far bigger, alarmingly bigger. It is a very
simple question, what were those kids doing out there in the first
place? It’s a war zone outside that shelter. If they wanted ice cream and
sweets so bad, there were plenty of adults who could step outside and buy it
for them. This is such a disturbingly unusual behavior in times of crisis any
reasonable person would have noticed it. Children are not supposed to be
outside in a war zone for the same reason they are not supposed to do this when
a hurricane or a tsunami is approaching. It is simply and obviously too
dangerous. If we are to accept HRW's version of events at face value, we will
have to accept the unlikely occurrence of a horrific set of coincidences. When
a set of highly rare, unusual, and bewildering behaviors, took place in a
monstrously perfect sequence needed to bring about this horror. First we have
the food vendors. For some reason these guys decided to risk their lives and
businesses, and open shop in the middle of a war. Yes they started during a
cease fire, one of many that kept collapsing, the danger they were under was
imminent. Food vendor like these guys had no way of knowing where and when the
war will fall on them. This is a very unusual decision, which the average
business person is unlikely to make. This is made worse by the testimony of the
surviving ice cream sales man Saber al Hams, who said that the vendors kept on
selling their ice cream and sweets after the cease fire had collapsed. More
unusual is the behavior of the parents. Apparently not even a single parent,
out of hundreds, protested. Hundreds of
parents inside that shelter and none were concerned? All are apathetic to their children safety?
Does this sound likely to anyone? A third group with a similar bewildering
behavior are those of the staff and volunteers that operated this UN run
school. Judging from HRW account non-of of them said a thing either.

Each
of those behaviors is an extremely unlikely conduct in its own right. Normal
food vendors do not open shop at a war zone during war time, especially after a
cease fire had collapsed. Normal parents do not let their kids step outside of
their shelter, no matter what the danger is. And responsible staff workers and
volunteers will keep them inside and sent away such un-normal vendors. Each of
these behaviors is extremely unusual, and extremely rare, if not totally
unlikely. And for these three separate highly unusual counter safety behaviors,
to occur at the same place at the same time, is so unlikely it is outright
suspicious. Made worse by another
suspicion coincident; that of all the places the motorcycle riders could choose
to slow down at, they did it in front of this school, the sight of an already
implausible set of bad coincidences. The more likely explanation is that this
was prearranged at some point earlier, as an escape route. An escape route,
were those kids were the equivalent of smoke screen, a cover of protection for
the escaping motorcycle riders. Prearrange by militant elements that took
control of that school and kept the parents and staff from interfering by
either deceit, force, or both. All they had to do was to keep the vendors
outside the gate, tempting the kids to stay out of the shelter, beyond the end
of the cease fire, and long enough for that motorcycle to arrive.

This
suspicion is reinforced by another suspicious coincidence. This is what 23
years-old Azhar Odwan said about the reason she became a volunteer: "I
started to work as a volunteer because I felt a need for more women volunteers.
The women sheltering inside the school need to be able to talk to women, not
only men." More women volunteers were needed because the women
there had only men to talk to. An all men hiring policy is very strange
hiring policy for an organization that belongs to the United Nations. But it is
quite common among religious fundamentalist organizations in the Middle East.
One such organization that is highly active in the Gaza Strip is Islamic Jihad.
And according to the IDF, the riders of the motorcycle belonged to that
organization. So we have here a motorcycle ridden by people Israel's says
belongs to Islamic Jihad, which slows down near a UN run school, with a hiring
policy of volunteers that follows the religious philosophy of that very same
organization. This is a suspicious coincidence in its own right. Add the two
together and the alarm will turn on even for the skeptic.

For
those who are not yet convinced that something very suspicious was happening at
that school prior to the attack, here is a question. What was the getaway
vehicle doing there? Here is what the nameless 45 years-old volunteer told HRW:
"There were two guys killed on that motorcycle and the third one was
taken away by a car immediately." Only a getaway car in a standby
could take him away immediately.
And any good escape maneuver, no matter how cynical, needs a good
diversion or a good cover. Something both Hamas and Islamic Jihad are more than
capable of arranging.

There
are two options in understanding the events of that day as they are described
in this account. We can take HRW account at face value and accept that nothing
unusual or worth investigating took place at the Preparatory 'A' Boys' School
in Rafah, on August 3rd, prior to 10:45 am. This means accepting as
a fact that Palestinian parents are grossly careless and apathetic to their
children's safety. This is actually something many right-wingers will agree
with, loudly and obnoxiously. Or accept as highly likely the possibility that
one of the armed Palestinian groups had taken control over that school, used it
and abused it for their own needs; including sacrificing children in order to
save three of their men.

There
is no choice to be made here. Just listen to the witnesses.

This
is how the ice cream salesman Saber al Hams, describes how unusual their
presence was: "The place was full of people. Actually the rest of the
street that day was calm, because there had been a ceasefire, but then it
collapsed, so people didn't go out." However it is the
beginning of his testimony that is the most revealing. "I felt that day
it was not busy enough. And it was not picking up, so we only
stayed for an hour. I left at around 10:30 am…" Simply put, it made no
business sense for the vendors to be there. Most of the kids in that shelter
simply did not go outside to buy ice cream and sweets. What kind of kids do not
go out to get ice cream and sweets? Only one kind, the ones forbidden to do so
by their parents! And be certain it was not easy for them. Here is how Azhar
Odwan describes the conditions inside the school's compound, "the
playground is always full of people, especially kids. Given that its summer in
Gaza, and the humidity…" The parents in that UN shelter kept
their children from stepping outside and buying ice – cream even under the
unbearable conditions of the heat and humidity of the Gazan summer. In the
complex and tense situation that had existed inside that school there are going
to be a few parents that will cave in to their children bagging, and a few
others that will be deceived by their kids. It is unavoidable, but it does not
change the fact that the parents at the Preparatory 'A' Boys' School in Rafah
behaved admirably, more precisely - parentally; and kept their kids from harm's
way.

Their
typically normal behavior as parents, in the highly un-normal circumstances of
war and crisis, strengthen the already strong suspicion that something
extremely wrong was taking place. And
they are not the only ones to do so. As the testimonies of two male volunteers
tell us, those of Moammar Shaqliah and the nameless 45 years old volunteer,
some kind of an altercation took place at that front gate. It was an
altercation between one of the organizers of this UN run school and a third
volunteer. It was so heated these two witnesses/ volunteers had to
mediate. There is no way of knowing from
this HRW account what the debate was about. But anything short of immediate
concern for the safety of children outside the gate would have been a huge dereliction
of duty by this UN staffer. There is no way to confirm it with this data, but
it is a strong likelihood that the UN staff also behaved normally and
responsibly. And the reason he and the rest of his staff could not get that
gate close is because they were not in charge of it at the time. Think of the
picture of this mediation. We have here 3 volunteers vs one UN staffer. What
kind of objective mediation they could offer, if any, is not all that
important; since whatever the mediation there was, it was sufficient to keep
the gate open long enough for the motorcycle to arrive. And bring about this
devastating tragedy.

And
for those who will oppose the idea that any of these volunteers is capable of
such brutality I bring the full testament of the nameless 45 years old
volunteer. And I recommend reading it, over and over again.

"On
the black day, I was at the gate of the school trying to resolve a dispute
between one of the managers and a volunteer. Suddenly the sound of a drone
became really loud – it was unusual and very aggravating. I looked up to the
sky and we all stopped talking. I was still at the gate, when one of the
displaced families asked me to get them another gallon of water. The families
get only one gallon per day, and to get an extra gallon would be a big
procedure, so I was just turning around to go talk to another supervisor inside
the school. I was 15 meters from the gate, in the middle of the court yard,
there's a basic football (soccer) field there, a playground. That's where I was
when the explosion happened.

In
the street there were three people on a motorcycle. The motorcycle slowed down,
exactly in front of the gate of the school, I could see it. The minute the
cycle slowed down, the missile hit. I didn't see anything suspicious about
them. There was a big fire, lots of smoke. As usual there were ice-cream
sellers at the school gate; four or five carts are always there. The children
always buy from them. As soon as the smoke cleared I run towards the street,
but I was so nervous, I was not sure there would be another strike. Everyone
else was running the opposite way, into the school. I was in such confusion
about whether to go forwards or to run back.

I
saw dead bodies all over the place, and wounded, mainly children, and the
ice-cream sellers. One of the ice-cream sellers, Abu Harb, his body took most
of the shrapnel. He was an older man. He was always there with his cart. There
were two guys killed on the motorcycle and the third one was taken by car
immediately – I don't know where he went."

Just
listen to this guy:

First,
he wants to be anonymous. Why? Who is he hiding from? With a testimony critical
only of Israel, he clearly has no reason to fear Hamas or Islamic Jihad. This
means that he is hiding from Israel. Only members of armed Palestinian
organizations such as Hamas and Islamic Jihad have a reason to hide from
Israel.

Second,
he is the only one who thinks this was not unusual for the ice-cream vendors to
be there. There are always there, he says, which is probably true. But war is
not always there, the last time war took place there was on the eve of 2010.
And that is why over 3,000 souls in that shelter actively disagreed with
him.

Third,
he is the only witness to mention the drone. He found its present unusual and
aggravating, but not frightening enough to get people inside and close shut the
gate.

Forth,
he was able to notice the motorcycle while been preoccupied by a family asking
for another gallon of water. And that is when he was 15 meters inside the
school, which is a distance 25 or 35 meters away from the motorcycle.
Surrounded by the school's confines and the distracting commotion of hundreds
of people, (as described by the female volunteer Azhar Odwan); he was able to
notice that motorcycle coming, slowing down, been hit by the missile,
exploding, and one of its occupants surviving and taken away by a getaway car.
That is the kind of attention to details we would usually find in a person
waiting for that motorcycle to arrive.

Fifth,
while all the other witnesses were devastated by the site of dying children his
attentions was focused on that motorcycle. All he could offer them was this one
sentence, "I saw dead bodies all over the place, and wounded, mainly children,
and the ice-cream sellers. Abu Harb, his body took most of the shrapnel. He was
an older man. He was always there with his cart." Not a single child
that was dying or wounded caught his attention or broke his heart, and that is
cold, very cold. The kind of cold bloodedness we would expect from a person
able to sacrifice children for his own needs. In his testimony the nameless 45
years old volunteer exhibits all the properties needed for someone who
participates in such a brutal escape maneuver. Besides helping keep the gate
open, he acts like someone who is waiting for that motorcycle to arrive. And he
is totally indifferent to the suffering of the children around him. Apparently,
when many others were carrying the dead and wounded into the school's compound,
he was the one who was too shocked and confused to do the same. But one of the
casualties did catch his attention, the elderly ice-cream vendor Abu Harb. He
was focused to notice that Abu Harb body took most of fragments from the
explosion.

The
allegation made in this review of HRW account, suggests that Palestinian
militants, probably Islamic Jihad, orchestrated this situation in order to bail
their friends on the runaway motorcycle. An escape maneuver like this, were
children are nothing more than expandable pawns, requires the presence of
someone like nameless 45 to co-ordinate and supervise. Well, here he is. He is
waiting for that motorcycle to arrive even when he is distracted away from the
front gate. He is indifferent to the suffering of children he himself put in
danger by keeping the front gate open, even after the cease fire had collapsed
and an enemy drone has been sited. His presence is no longer a matter of
another unexplained coincident. This is incrimination. We have in front of us
cold blooded humanitarian volunteer that seeks anonymity. Who just happened to
positioned himself just where it is necessary, to monitor the escape maneuver
of the motorcycle's occupants.

The
fact that only one of the casualties caught his attention, the elderly
ice-cream vendor Abu – Harb, does not exonerate him from any charges. It only
increases the level of the incrimination. Abu – Harb represents the most
disturbing and monstrous part in this revealed outrage. He is a very peculiar
ice – cream vendor, and not in a nice way. Besides been one of the ice-cream
vendors who stayed, thus keeping the children in danger, he has a strange name.
Abu Harb is an Arabic name that usually means father of war. This is not the
kind of a name we would associate with selling ice-cream. If his name or nick
name was Abu Boora, father of ice-cream, or Abu Mahroot, father of cone, as in
ice-cream cone, that would have made sense. But father of war, is the kind of
name usually associated with members of armed organizations and their
sympathizers. In a culture where Jihad, holly war, is a common first name, the
likelihood of someone being called Abu – Harb, may not be a small one. But if
that is the case, it is another co-incident to add to the list; maybe not the
most glaring, but disturbing enough. According to the testimonies gathered he
took most of the hits from that explosion. This means that he was the closest
to it when it happened. It also means that he was the farthest from the
school's front gate. Why would he do that? Why would he sell his ice-cream far
from this school? His market is inside that school. With business been tough,
he should be doing the opposite, getting as close as possible to that school,
shouting, singing, promising cold refreshing ice-cream. Instead he is in the
worse possible location, battling his competitors over the handful of kids that
did come out. Business wise this is pointless, counterproductive. But if he was
a part of that escape maneuver, then his behavior would have made perfect sense.
For the organizers of this diabolical escape maneuver to guarantee its success
they had to make sure the operators of the drone and its missile are able to
see those kids. As the IDF video of aborted missile strikes shows, it is the
visual verification of the presence of civilians that leads to these
cancellations. And the best way to ensure that is to get at least some of those
kids as close as possible to the arriving motorcycle. This requires perfect timing and
co-ordination. In the clear division of labor that emerges here, the volunteers
at the gate and the motorcycle riders had to work on the co-ordination and
timing part of it, while Abu Harb's job was to make it perfect. Obviously, he
failed, and a cold blooded gamble with children's lives became a war crime. A
war crime performed by Islamic Jihad against their own people. And quite possibly, people from their very
city and neighborhoods.

It
is a war crime that violates international law on several levels. International
law forbids the use of human shields. It also requires all parties to a
conflict to give special protection for children. From a moralistic point of view, using
children as human shields is especially outrages and monstrous. The problem is
that international law's main focus is on war crimes aimed against an enemy
population, not when it is self-inflicted.
When international law does face such situations, it refers to them as
extraordinary. Best example is the Khmer Rouge trials, known as the 'Extra
Ordinary Chambers in the Courts of Cambodia'.
This war crime may not require extra ordinary chambers, but it does
require attention. It shows that
civilians need the same legal protection from their own forces as they do from
enemy forces.

Having
established the fact, that Islamic Jihad has committed this war crime, a war
crime against their people, a new question rises. Does this conclusion, means
Israel is innocent? After all, the Israeli missile was an instrument of death
in this crime.

If
an international judicial authority does decide to launch criminal proceedings
against Israel and the IDF regarding this war crime; justice demands of them to
take a series of actions first. The first among them is to take on the issues
HRW investigators had avoided. Completing their investigation and proving that
the operators of the Israeli missile could see those children and had the
ability to abort its flight. That means also been able to identify in time an
accessible vacant area where the missile could have exploded at safely. They
also must verify that no secondary explosions took place; that no bombs or
other explosive devices were carried on that motorcycle.

And
once this judicial authority believes it has all the necessary information
needed to actually file charges against Israel and the IDF, they must first
file charges against those who share the greater part of the blame, Islamic
Jihad and its group of volunteers that operated that day at the Preparatory 'A'
Boys' School in Rafah. Why them, and not
those who sent the instrument of death? Think of the following analogy. A group of kids is playing in the open. At
some point a smaller group of adults is joining them. They are not complete
strangers to those kids, so the two groups interact friendlily; especially when
the adults have more fun staff to offer those kids. A fancy new football
(soccer) that looks awesome when kicked skywards, a baseball with a bat to
match, a few throwing balls to toss around, and a couple of skateboards. And of
course the accompanying snacks and sweets. With these they lead those children
to a different playground, the nearby highway.
At this time of the day it is still empty, silent, a tempting playground
in its own right. But as the games continue, and the kids are distracted by
their entertaining toys, this time of the day is about to end. And from behind
the hill, that of which the empty highway goes over, rush hour traffic is
coming in full speed. The outcome is as unavoidable as it is horrific. With
wounded and dying children scattered all around. The question is who would you blame for their
deaths and injuries? The adults who lead them there and placed them in lethal
jeopardy, or the drivers driving the instruments of death?

This
analogy applies perfectly to the crime committed by Islamic Jihad outside the
Preparatory 'A' Boys' School in Rafah; on August 3rd 2014. Ask
yourselves two simple questions, If there were no civilians and children
outside that school, would that motorcycle have slowed down in front of its
front gate? And if there was no motorcycle trying to escape an Israeli drone,
would that gate had remain open after the collapse of the cease fire? The
answer to both questions is NO, and without those two actions this
horrific incident would not have taken place.
The IDF operators of the missile may or may not have had a choice in
their actions. If they did it was during a very narrow window of time, much
like the car drivers in the analogy. The motorcycle riders and those who kept
the gate open definitely did have other choices. And like the adults in the
analogy they are the ones that brought the kids into a place of lethal
jeopardy. Therefore their share of the
blame is both bigger and definite. And justice demands that they be the first
to be prosecuted. Because prosecuting
the least responsible party to a crime while leaving out completely the chief
instigator and facilitator of the crime, is a definition of injustice.

However the work of justice does not ends here.
There is one more party to this monstrous war crime that has to face criminal
charges, one whose responsibility is also greater than that of the IDF. This
party is made up of those helping the main perpetrators of this crime avoid
justice. These are HRW's authors, and researches of this abysmal account. NEXTHuman Rights Watch as war criminalsSTART

The
tragedy in the Jabalya girls' school took place on July 30th at
4:40am. In that incident 20 civilians were killed, among them 3 children. Based
on all accounts, including that of Israel, the cause of these deaths and
injuries were Israeli artillery shells. These shells were clearly identified as
155mm shells, and Israel is the only party in this specific conflict to use
them. This time we do have a clear identification of the munition involved. And
since the IDF had acknowledged firing them, there is no dispute here in the
first place. Therefore on the face of it
Israel is clearly guilty. Only on the face of it; the details suggest this is
not the whole picture. This is not where it ends, and this is not where it
begins. It begins with the fact that during the battle in the outskirts of
Jabalya, circumstances were those weapons were needed, kept on coming. There,
as elsewhere in the Gaza Strip, fighters from Hamas and other armed Palestinian
organizations were hiding behind barricaded positions scattered in a dense
urban environment. This is a situation where every corner is a natural
opportunity for an ambush, and where many were used for that purpose. From such
fortified hideouts the Palestinian fighters fired mortars and anti-tank
missiles at the Israeli forces, as well as long range missiles against Israeli
population centers. These were threats infantry unit could not remove by
themselves, therefore needing the assistance of the artillery. As long as these threats had existed, these
forces could not carry out their mission, and protect the Israeli civilians
targeted by the Hamas rockets and missiles. This general description of the
battlefield conditions is an undisputable fact. Both the IDF and HRW
acknowledge the fact that heavy fighting took place. And heavy fighting by its
very nature is not one-sided. If only one side in a fire exchange has the heavy
weapons, the fighting ends quickly. The question as to whether these were the
circumstances in this specific case is caught in the predictable dispute
between the versions of each side.

In
this case HRW's investigators rely a lot on a UN investigation as published by
the NYT. The tone of that article is more accusatory towards Israel. But it
also provides more details about that incident. As with the Beit Hanoun tragedy
we have here a dispute between two versions. Israel, saying that its forces
fired at enemy mortars positions firing from a distance of about 180 meters,
(200 yards), from that school. And the version of the Palestinian witnesses;
claiming not to have seen any such activity. But the details undermine the
credibility of their testimony. Not of the witnesses themselves, even though
one of them chose to be anonymous, but certainly of their testimonies. First it
was dark, as NYT says "predawn", 4:40am. Second, it was noisy,
extremely so, violently so. The hell of war was ongoing outside that shelter.
As the witnesses told the NYT, "In the hours before the strike,
explosions and shelling kept many people awake." In a situation such
as this the surrounding conditions undermine the credibility of the accounts given
by eyewitness and ear-witness alike. It is too dark to notice activity outside
their shelter, and too noisy to clearly differentiate between the various
sources of noise. It is simply too confusing to differentiate between the
sounds of explosions, or the launching of projectiles, such as mortars,
rockets, and missiles. Clearly identifying their distance from the shelter will
also be impaired. In these kinds of circumstances confusion is unavoidable.
Again it is a part of the very nature of a heated battle. The lack of such
confusion, if indeed there was none, is so unusual it is the one that requires
explanation or corroboration. We get
more than a glimpse of that intensity and confusion from these two IDF video,
showing the Nahal brigade fighting in the outskirts of Jabalya on July the 29th.

As
for the Israeli version, this one enjoys a support rising from the details
provided by both the HRW's account and the account published by the NYT.
According to HRW the UN run school and its surroundings were hit by ten 155mm
shells, which included smoke and illumination shells, along with high explosive
shells. The uses of illumination shells in the darkness of predawn hours help
identify and differentiate the intended target from the surrounding area. Smoke
shells prevent enemy spotters from aiming their artillery fire, such as
mortars. These are the kind of tools the IDF had to use if its version is the
correct one, and it did fire on enemy mortar positions. If Israel was firing
indiscriminately, why bother including them in the artillery round? True, the
UN investigators, mentioned in the NYT article, did not find any evidence of
close infantry combat in the immediate vicinity of that school. But no such
claim was made by the Israeli side in the first place.

The
NYT brings the testimony of villa owner Abdel Latif Al – Seifi who said, "It
was clear that they were not aiming at a specific house, but fired lots and it
fell where it fell." His testimony is disputed by the map of the hit
sites provided by the NYT itself. There we see two clusters on the opposite
sides of this school. The central point of each cluster is outside the school
at a distance very close to 200 yards. Just as the Israeli version claims.

But
the strongest support for the Israeli version comes from the fact that Israel
did go into a great length to minimize civilian casualties. A warning missile
known as "knock on roof procedure" was sent at 2am, giving people
time to prepare. The laminations shells lit the dark skies in order to better
identify the actual target; and better aim the artillery away from that school.
And from that artillery round only 3 out of 10 shells landed at the school's
compound, and only one of them was carrying live munition, (see the NYT list,
specifying where each shell hit). As the nameless witness told HRW, the
bombardment was short, 3 – 5 minutes. The conclusion is simple and
undisputable. Israel did what it could to keep the sheltering civilians from
harm. Sent a warning ahead of time, illuminated the skies, kept its own
bombardment short by using a handful of shells, and successfully kept most of
them away from that school, especially the live ones. And these are just the
measures we can learn about from the witnesses' accounts.

However,
the most important evidence in support of this claim is the fact that Israel
and the IDF were successful in this effort. This was not a 100% success, but
very close to that standard. As HRW kept emphasizing, 3,200 people were
sheltering in that school. And out of them only 20 were killed, (21 according
to the NYT). 'Only', because 20 out of 3,200 is 0.625%, less than 1% killed,
over 99% survived, extremely close to 100%. Effort wise, this should be
considered, and is, a success. Adding the number of wounded, (45 according Mike
Cole, a UN official quoted in the NYT, and 100 according to the Guardian), does
not change the fact that most of the civilians sheltering in this school were
unharmed, more than 90%. The only way this can be considered a failure is if
the standard for success is 100%. If so,
those who set this standard should have the integrity to publicly say so in the
first place. If this is not the standard, then the conclusion is unavoidable,
the IDF operation in the immediate vicinity of the Jabalya girls' school was
successful in minimizing the civilian casualties. Such a success, over 99%
survival rate, cannot be achieved without an effort. A huge effort made by the
attacking side to minimize civilian casualties. And why bother to go through
all that effort, unless there is a real military target nearby?

Nonetheless,
people were killed. And the question, could Israel have done more in order to
save lives is proper and appropriate. When the value of life is at the core of
your convictions, that question is always proper. To the opposing sides in this
dispute, this question places each of them in a different position. For the IDF
it is a requisite of professionalism and ethics, studying the details of the
events in order to do better the next time. Fulfill the military objectives with
less impact on civilian lives, less harm, fewer deaths, getting even closer to
100%. For Israel's critics and detractors it is about finding that one detail
from which charges of war crimes and/or violations of international law can be
built. An integral part of that process, for both sides, is taking into account
what the IDF couldn't have done. And as powerful as the IDF is there are a few
things it couldn’t do. According to the NYT and its witnesses most of the
killing was caused by the only live shell to land in that compound. This one
hit the courtyard were men were praying underneath eucalyptus trees. In predawn
darkness, underneath the canopy of eucalyptus trees, the briefly lit
lamination shells cannot help detect such a gathering. Therefore, these
deaths, tragic as they are; the IDF could not have prevented.

According
to both HRW and the NYT, another part of the school that was hit, was the
second story of a classrooms' building. This place also took a lot of
casualties. Judging from the pictures provided by both publications, something
came crashing down throw the roof. Not exploding, crashing down. These are most
likely the smoke shells or the lamination shells reported by the two accounts.
As mentioned above only one shell with live munition fell in that school
compound, and that was at the courtyard, not the buildings. Now, unless someone
can prove, without a shadow of a doubt, that with commonly known and available
means, there are ways to affect their trajectory without compromising their
efficiency, efficiency needed among other things to keep the more lethal live
shells away from school's buildings; unless someone can do that, this is
another tragedy Israel could not have prevented. Israel also could not have
prevented the harm caused by the window's broken glass, and the shrapnel that
came through. This is typical collateral damage situation, the most obvious and
most famous example of it.

A
second tier of exclusions has to do with what the Palestinian armed groups and
UN personal could and couldn't do in order to protect the lives of the unarmed.
However, the role of the Palestinian armed groups is pointless to discuss,
since there is a dispute as to whether they were there at the time. As for the
UN role, here there is plenty to discuss. It is seemingly outrageous that their
personal placed the women and children at the second floor, and allowed the men
to gather outside in the courtyard. These are the most vulnerable places to
collateral damage and spillovers from the ongoing fighting outside the shelter.
The most protected places of course are the first floor and the basement, (if
there is one), protected among other things by the second floor. Actually they
really had no other choice. They had 3,200 people to take care off, with 24 rooms
available; it is an average of over one hundred souls per room. Cramped is an
understatement. What made it all far
worse is the fact that it is midsummer near the sea. Heat and humidity are at
their highest, producing unbearable conditions even for smaller gathering of
people, let alone 3,200. And the nights
offer very little relief. The sound medical decision was to place the women and
children in the cooler upper floors; and to allow the men to enjoy the somewhat
more breathable air outside. Knowing that, remembering that is to understand
why they too had to operate under unenviable constraints. But even under these
limitations the UN personal could have done more to help the people it was
supposed to protect. For example, they could have prevented the windows' glass
from breaking by simply crisscrossing them with duct tape. If a single Palestinian woman could get
enough duct tape to keep the windows in her home from braking so could the UN
with its truckloads of supplies coming through the Erez Crossing and Kerem
Shalom. And they could have done more. In Israel, one of reasons the number of
civilian casualties is lower is because of a long of list of emergency
procedures that are taken by civilians and civil authorities when an immediate
threat is looming. There is no reference for these kinds of procedures in the
accounts published by the NYT and HRW. According to the testimony of Suleiman
Hassan Abd el-Dayam, as published in the HRW's account, it was up to him and
his extended family to take safety precautions once the warning shell came at 2
am; precautions that were largely improvised. There is no mention in his
testimony of any UN activity regarding their immediate safety concerns. No
special procedure is mention, and no UN personal came to look after them. And
that in a time span of at least 2 hours. As mentioned above the warning shot
was at 2 am, and the brief bombardment begun at 4.40 am. According to another
witness, the nameless staff worker, most of the injuries from glass and
shrapnel he saw were to the heads and faces. This is something that can be
prevented or minimized by covering the faces and staying away from the windows.
We can see that in these Americantornado drills, a natural disaster that can
produce similar injuries.

Interestingly,
someone there did do something right. The statistics tell us that only 3
children were killed in that tragedy, a remarkably low figure. This tells us
that someone was able to keep most of the children away from the more
vulnerable parts of this school's buildings. Who was this person, and what she,
he, or they did, the accounts of HRW and the NYT do not convey. But evidently
someone was able to save lives in spite of all the difficulties mentioned
above. Politics aside, whoever this person is, she, he, or they, deserves our
praise. This heroism and ingenuity shows that something could have been done;
and that puts to shame the entire UN's organization responsible for the people
sheltering in the Jabalya girls' school.

We,
the mere readers and observers, must understand the difficulties of saving
lives in such a precarious situation. With or without emotional involvement in
the Israeli Palestinian conflict, and no matter which side we empathy with. We
must all internalize that for lives of the unarmed and helpless to be saved
during a violent, chaotic conflict, all must do their part; all must do their
part! And even then there is no guarantee that all will survive. But if one
side does the maximum and the other the minimum, more will needlessly die. And
here the maximum was not done by the UN personal. And while one may choose
dispute the fact that the IDF had done the maximum in order to save the lives
of Palestinian civilians, there is no other way to explain the result.
Carelessness with massively lethal weapons does not produce a 99% survival
rate. If people are lucky, around 70% will survive. If they are not lucky less
than 20% will live to carry that horror with them for the rest of their lives.
A 99% survival rate can only be achieved if the attacking side goes into a
great length to protect those 3,200 lives. This is a matter of a huge effort
backed by a long experience. Without these two such a success could not have
been achieved. Unless; again; the standard for success is that of 100% survival
rate. And since Israel did the maximum and the UN did not, any charge of war
crime will have very little to work with.

If
the details of the evidences and testimonies speak in favor of Israel why does
HRW find Israel guilty? According to them it is international law. The dispute between the two versions they set
aside, even though it is clear which of the versions they are in favor of.
Instead they focused on a legal argument that says that the munition used,
155mm artillery shells, is simply too crude to be used in such densely
populated urban environment. It has an error range of 25 meters and the spread
of the fragments produced by its explosion has a radius of 300 meters. This is
not an argument based on international law. This is an argument based on an
interpretation of international law, a bad one. But first of all, there are
some elementary flaws in the logic of this argument. If the weapon is that crude, and it
is crude, that only enhances the magnitude of the IDF success in protecting the
lives of the 3,200 people sheltering in the Jabalya girl's school. 99% survival
rate is not the product of luck, especially when the weapons involved are
crude. But for HRW the survival rate is not a criterion. Crudeness is their
only criterion. This leads to a more serious flew of this interpretation. What
if those same deaths, this same tragedy, had been inflicted by a more accurate,
less crude of a weapon? Would they have been legal then? And since the survival
rate is not a concern, will a greater number of deaths produced by a non-crude
weapon be also legal? These are
unavoidable logical outcomes of their interpretation. Intentionally or
unintentionally their interpretation dumps both the living and the dead and
reduces them to mere props in the drama that preceded the accusations. Under
HRW's interpretation of international law, even a far higher death rate, where
survival rate can be less than 20%, would have been legal. If lives are
valuable, the crudeness of weapons is important, but also how there are been
used. The most accurate of weapons can be mishandled with frightening results.
And evidently a crude weapon such as 155mm artillery shell can be used with
such a care, 99% will survive, 90% will be unharmed. Of course HRW and other
human rights activists can argue that even the hypothetical scenario introduced
here constitute a war crime; since the number of civilians killed is far higher
from what we would expect from a more accurate type of a weapon. But that means
reintroducing the survival rate as a criterion. And if it is implemented on a
more accurate weapon, it should also be implemented on a crude weapon. And the
same logic that says it is a war crime when an accurate weapon produces a
higher than expected death toll; must also say that when a crude and powerful
weapon brings about a distinctly low number of deaths, it is not a war crime.

HRW's
interpretation of international law does not only abuse Palestinian lives. It
does the same to Israeli lives. There is no questioned that it is easier to
avoid civilian harm with more accurate weapons. But such weapons are not always
capable in taking out the legitimate military target. A fortified bunker is one
example that requires the use of 155mm artillery shells. Another one is a
mortar position that is defended by snipers, and various booby traps around it.
Giving soldiers the cover they need when uncovering a tunnel that threatens
other Israeli soldiers, and probably civilians, is another example. In
prohibiting this weapon HRW creates legally secured, freehand regions for armed
Palestinian groups to operate from. All they have to do is to be very close to
large concentrations of civilians, such as these UN run schools, and target
from there both Israeli soldiers and civilians, with no fear of consequences.
This interpretation of international law is a non-starter, implementing it only
leads to frightening absurd that international law cannot live with.

What
international law actually says about situations such as this is more complex
than that interpretation. But it is not much different than the analysis
presented in this review. The ICRC (the international committee of the
Red Cross) has a database that explains international law in simple yet through
manner. The rules in this database show how in the Jabalya girls' school
incident, Israel had in fact acted in accordance with international law:

Rule
17: target selection. This is summarized as follows, "Each
party to the conflict must take all feasible precautions in the choice
of means and methods of warfare with a view to avoiding, and in any event minimizing,
incidental loss of civilian life, injury to civilians and damage to civilian
objects." As mentioned in this review, Israel gave an advance warning,
illuminated the skies, kept most of its lethal ammunition away from that
shelter's compound, and kept the bombardment short. As the map provided by the
NYT shows, most of the strike sites are outside of the school's compound. One
is on its border, and only one inside. The strike sites themselves are
clustered outside that compound, and the largest gaps between the strike sites
are located on the school compound itself. This shows an effort to differentiate
between that school and its immediate environs. With such close proximity, of
less than 200 yards, this is extremely challenging; nonetheless, there isn't a
single clustering of strike sites inside that compound. The two clustering show
were the intended targets were located - outside. With no clustering inside the
compound that school was clearly not targeted, selected out of the targets
list, and differentiated from its immediate surroundings. And with 99% survival
rate among the sheltering population, the minimizing requirement was also met.

What
HRW was trying to do was probably based on the misuse of rules 12, 13 and 71.
Rule 12 defines the principle of definition of indiscriminate attack.
There are basically three such definitions. From them the third concern, rule
12c, is the one relevant to this discussion. Rule 12c defines as follows an
important aspect of indiscriminate attack, "which employ method or
means of combat, the effect of which cannot be limited as required by
international humanitarian law." According to HRW the effects of
high explosive 155mm artillery shell cannot be limited to the military
objective because of the error rang and the range of the dispersal of
fragments, see above. The error range argument is disputed by the HRW account
of the incident. As they describe it, not a single live shell hit the
well-recognized, more easily identified, buildings of this school compound.
Those were the places where most of the civilians were sheltering, and the IDF,
as required by international law, kept all live munitions from hitting them.

As
for the protection from the impact of fragments, these are not chemical
weapons, not biological weapons, and not thermo-nuclear weapons. With commonly
available means civilians and local authorities have the ability of protecting
themselves from this threat. All that is needed is for something to halt the
fragments as they spread. This can be done by the walls of buildings, with
their windows reinforced with duct tape, of course. Sandbags are another known
means of protection against fragments.
And there are also pre arrange shelters, and safety procedures, such as
escorting the populace to the more secure parts of the buildings, and more.
Since the attacking side is not located on the ground with those civilians it
cannot provide those means. This is simple logic, and logic is how
international law expects rule 12c to be implemented, see the explanation in
ICRC database. This is reinforced by rule 22 which stipulates, "The
parties to the conflict must take all feasible precautions to protect the
civilian population and civilian objects under their control against the
effect of attack." Whether or not this part of international law
applies to a neutral party such as the UN is a matter of interpretation. What
this does show is that as far as international law is concern, there is a limit
as to how much responsibility can be placed on the attacking side. This is a
limit that does not exclude the attacking side from doing what is feasible
from its end in order to minimize civilian harm, but it shows that the
defending side is not expected to do nothing. With 99% survival rate the IDF
met the demand of international law. Whether the authorities on the ground had
done the same is unclear, if not disputed.

Israel's
adherents to international law also include abiding by rule 12c. The advance warning, gives civilians and
local authorities time to prepare and implement their means of protection
against the effects of an attack. Therefore the advance warning, known as
'knock on roof,' is not just an implementation of rule 15, which specify such
an action, it is also an implementation of rule 12c.

Rule
13 deals with a situation called area bombardment, when a large area is
bombarded from the air or by artillery. In situations such as these there is a
need to make a distinction between military and civilian objects in that area.
But there is no clear description in international law of what is the distance
that can make a clear distinction possible. One possible reason for that are
the technologies available. Accuracy is a product of technologies; they can
determine our ability to make such distinctions. And if such a clarification
was to exist based on the technologies of the past, it would constitute a
license for murder under the current technologies. On the other hand ignoring
this requirement altogether is a license to use human shields. The former is a
violation rule 1, the principle of distinction between civilians and
combatants. As well as rule 89, that forbids murder. The latter is a violation
of rule 97, which forbids the use of human shields. It says, "...using
the presence (or movement) of civilians or other protected persons to render
certain points or areas (or military forces) immune from military operations."
While the international community avoided these two traps by not clarifying
this criterion. HRW fell right into it, adopting an interpretation that makes
the use of human shields legal. Israel on the other hand tried to implement
this rule, in spite of the challenging circumstances. A short bombardment
lessened the chances of live shells hitting known concentration of civilians –
the buildings. And the clustering of strike sites outside that school show that
a distinction between the school, and targets less than 200 yards away from it,
was made.

Rule
71 forbids the uses in populated areas of weapons that are by nature
indiscriminate. However, artillery of 155mm shells is not listed as one of
them. And those that are listed do not enjoy a sufficient consensus in the
international community. Since the IDF
was able to use this weapon discriminately, and save the lives of thousands of
Palestinian civilians, Israel did obey this rule.

HRW
remaining legal argument is that Israel did not provide any evidence or
information confirming its claim. The claim of attacking enemy mortar positions
located 200 yards from that school. Israel is not obligated to give that kind
of information to HRW, or to any other human rights organization. This does not
constitute a proof of guilt. Moreover, this is an incomplete argument. In order
to prove that Israel did not attack military positions near that school
compound, they must also demonstrate that Israel did not behave as a party that
is attacking closely located military positions. But this part of the argument
was not even taken. Instead this was done by this review. And what this review
had showed is that from their own information and that of the NYT, the IDF did
behave as a military force attacking mortar positions close to this UN
compound. Smoke shells to blind the spotters, lamination shells to better
detect the targets and avoid hitting the shelter and other civilian objects,
clustering of strike sites outside that school – at proximity of 200 yards or
less. Along with the successful effort to minimize civilian harm, the facts,
evidences, and testimonies that they have gathered, show that the IDF did act
as if it is attacking adjoining mortar positions. Now, why would someone who is
not attacking military positions act as if it does? Why bother going throw all
that meticulous effort, to differentiate between targets, minimizing civilian
harm, and abiding by international law, in order to attack something that has
no military value? Along with its misuse
and misinterpretation of international law, this account is another incomplete
investigation.

There
is no question that the case being made here is disturbing. Even neutrals will
have problems with it. And there is nothing wrong with that, it is a perfectly
human emotion, one that is based on empathy for dead and wounded, and their
families. It is certainly, and
understandably disturbing to accept that those 20 deaths will be left
unanswered for, with no sense of justice. It is perfectly normal not to
feel right about it. It is a part of our natural repulsion from war. Something
we must always encourage. It is also understandably difficult to accept this
review critique of HRW. After all, why would a respected human rights
organization act as such a counter-productive force in the cause of human
rights? Why would it be a force that undermines the very integrity of the
practice of international law, and advocates interpretations that put more
lives at risk, rather than protecting them?

Sadly
it is easier to answer the second tormenting question, than it is to answer the
first one; painfully easy. As mentioned in the opening segment of this review,
a strange pattern had been evolving among human rights critique of Israel's
military actions, especially with regards to HRW. It is a pattern where the
dilemma of modern warfare is absent; a dilemma where decisions of life vs life
must be taken on a constant basis. When you ignore this dilemma you also
disconnect yourself from its cause, from the reason it exists, the value of
human life. Only people committed to the value of life will be torn by the need
to make life vs life decisions. When one is ignoring the existence of such
dilemmas in times of war, one immediately disconnects oneself from the cause of
these dilemmas, the value of life; all lives. Whatever the criterion
implemented may be? It will not be the value of life. This may not have been
their intention, but once they made that decision this is where Human Rights
Watch ended up at. On a slippery slope that lead to an unavoidable collision
with everything that is based on the value of human life. This includes
Israel's action as evidenced in the accounts given by them and the NYT, and
international law itself. Both are guided by that concern. And when they
adopted and advocated an interpretation of international law that legalizes the
deaths of more civilians from both sides, they collided with the value of life
itself. It is a downward course; once taken it can only get worse.

Providing
a sense of justice to those who had died is more difficult. These are men,
women, and children, unarmed civilians who had no businesses dying in the first
place. Life must matter, that is the guideline we follow if we believe in the
value of life. However, punishing Israel for the life it failed to save, means
punishing Israel for the life it did save, and protected, close to 3,200 of
them. And it is stating the obvious that punishing someone for saving lives is
the exact opposite of adopting the value of life. Such a course of action will
not only be contradictory to the value of human life, it will be contradictory to
international law, which encourages the minimizing of the death and suffering
that all wars inflict on unarmed civilians. Worse than that, such an action
will be nothing more than political retribution. It will not be a part of a
peace process, or a human rights process. It will simply be a part of the
conflict, a part of the process that includes wars and deaths in its dynamics.
Needless to say, justice for the dead will not be served by more deaths. No one
will benefit, especially not those who needs it the most; the most vulnerable
parts of the society, the unarmed civilians.
Seeking their wellbeing does not require political retribution. It
certainly does not require the misuse and abuse of international law, as preformed
here by HRW. As said here before, all it requires is for all to do their part -
even if they hate each other. What we all must understand is that clearing the
IDF from wrongdoing is not a license for the IDF to kill civilians. It is not a
reason for the scrutiny to stop, and it is not meant to be that. This is a
matter all sides of the debate must internalize. If we wish to contribute to
the saving of innocent lives, then this scrutiny must continue. But for it to
be productive it must also include the Palestinian side, the various agencies
of the UN working on the ground, and the human rights organizations reviewing
the actions of the combatants. Only this
way more will be saved should war comes knocking the next time. The down side
of this course of action is that it will give us a glimpse of that tormenting
filling when lives vs lives decisions must be taken. But without going through
this torment we won't be able save anyone. Worse than that, we might contribute
to the suffering and misery of many more.

Is
that justice? It is in the sense that preventing needless deaths prevents
injustice. But the politically motivated critics will undoubtedly disagree
strongly. The bottom line is simple as
it is painful, as we do more and more to save life, and succeed in it; we are
left with those only the end of the conflict can save. Peace, that lofty,
elusive goal, which few believe it can be achieved. The idea that we should leave some of the
lives needed to be saved for the peace process, is something many will find
infuriating. The argument, this is war and people die in it, is an argument we
must never surrender to. Whatever measure of humanity we can bring to this
monstrosity called war, we should and we must. But when such efforts and
concerns are crushed by the reality of war, the course of action must never be
the undermining of the ideal of human rights. This is precisely what HRW is
offering in their interpretation of international law, as presented here. This
is a choice between the unbearable and the immoral. An interpretation of International
Law that allows the use of human shields, and prevents a country from properly
and effectively defends its citizens, is immoral. It neglects the human rights
of both Palestinians and Israelis. Unbearable, is the filling we all have when
we come face to face with those we cannot save; those who perished in spite of
all our efforts, and those of others. This is not a splendid place to be. The
reality needed to be changed here is not a splendid one, far from it. But when
we choose an immoral path, what good are we to anyone? If, however, we choose
the unbearable path; its unbearableness might be the push we need, all of us,
regardless of our political and ideological convictions, to bring about this
elusive peace. This is not the most noble motive for peace making, but what has
the noble lofty ideals had done for peace making so far? All they did was to
become hollow words, with no relevance and credibility to either party. Much
like this conflict, peace makers, and human rights activists carry their own
open wounds with them. But they are not supposed to inflict them. When they do
that, they have no right to preach to others on these issues. More than that,
they do not have the credibility to do so. Their word has lost its value. And
all the good causes, of peace and human rights, become even more
unattainable.

I am not asking anyone to cheer the IDF over this
horrific tragedy, not of those who support Israel, and not of those who oppose
it. People died; there is no room for cheering. Like it or not; there is also
no room for condemnation. The IDF did
set out to save lives, and lived where saved. The choice is yours, the readers,
carry the open wounds of this conflict with you, or inflict them on unto
others, from both sides. Accept the unbearable conclusion that the deaths of
these 21 victims could not have been prevented by the IDF. Or share your cause
with an ethically bankrupt human rights organization. The second choice will
make you fill great with yourself. It will reward you with compliments made up
from all the words and phrases that exist in the lexicon of human rights
activism. But should this path get implemented… it will require you to be deaf
and blind to the suffering of more people, from both sides; people who
otherwise could have been saved and protected by international law and those
who follow it, like the IDF. And if this
tares you apart, sends your emotions into turmoil, well…, that is good! This
means that the value of life is alive within you, powerfully so.